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History and Judicial Reform

History

The past of supreme jurisdiction in Hungary

All those national and international political factors that affected the everyday of the prevailing Hungarian state exerted an influence - whether positive or negative - over its jurisdiction as well. The state of St. Stephen came to the vanguard of Europe in terms of legal security. With his codes the king - as the prominent person of supreme jurisdiction - laid down the foundations of a thousand year-old development of the legal system. After the 1320s the administration of justice in the Hungarian Kingdom assumed a structure that was to survive for centuries to come. However, the annihilating defeat suffered from the Turks at Mohács in 1526 signified the defeat of Palatine Werbőczy and the political regime of the day together with its system of jurisdiction. With the division of the country into three parts in 1541 the administration of justice involving the presence and personal participation of the king ceased to function in regions under Habsburg control. Elsewhere, in areas ruled by the Turks, the legal system of the occupying forces was introduced. The centralised administration of justice of the Curia, which had previously been of major importance, was now on the decline, to be replaced by local feudal jurisdiction.

Within the framework of the judicial reform in 1723, Act XXIV dealt with the Table of Seven, the highest judicial forum consisting of seven judges and presided by the Palatine, who was at the same time the president of the whole Curia. Based on the development of law of earlier centuries, Act XXV regulated the position of the Royal Court of Appeal led by the Chief Judicial Representative, which had its first session on May 2, 1724. The Curia, made up of two forums, the Table of Seven and the Royal Table (or the Royal Court of Appeal), was turned into a permanent court working in Pest independently of the royal court, though it did not meet regularly until the reign of Joseph II. With the establishment of four and from 1726 onwards five regional courts beside the Curia the framework of jurisdiction valid up to 1868 was laid down.

Following the surrender at Világos on 3 November 1849, Franz Joseph I dissolved the entire system of Hungarian courts. Out of the former courts of the Curia the Appeal Court of Exchange was partially and temporarily reinstituted at the end of 1849 but in 1850 - when in line with the ideas of absolutism the "imperial and royal" court structure was created (together with its supreme court) - it was dissolved again. The Table of Seven, which had previously been the highest legal forum, was dissolved. Its jurisdiction was taken over by the Kaiserlicher und Königlicher Oberster Gerichts- und Cassationshof that ruled in Vienna from 1848 and its competence was extended to cover the whole of Hungary. The legal successors of the Appeal Court of Exchange and the Royal Table were five regional courts called Oberlandsgerichte. The occupying forces destroyed the system of both the high courts and the lower-level judicial forums of the country and the legal system associated with the world of the estates was replaced by a centralised, unified, and clear-cut system of courts, the achievement of a foreign absolute power. It served modernisation by separating public administration from the administration of justice almost completely and by dividing the functions of prosecution and jurisdiction. The October Diploma of 1860 (the imperial decree granting Hungary independence in internal affairs once again) set a limit to the jurisdiction of foreign legal forums, abolishing the judicial system forced on Hungary at the time of absolutism.

The Conference of the Lord Chief Justice in 1861 reinstituted the judicial structure of the period before the revolution of 1848. The Royal Hungarian Curia began functioning again on 3 April 1861 in its building on Friars' Market in Pest. The Conference of the Lord Chief Justice left the structure of the feudal Curia untouched, however, in the light of the demands of bourgeois development and the changes it involved, the framework of the judicial system associated with the estates, which had been restored in several aspects, proved untenable. Act LIV of 1868 brought about two courts of appeal, with panels of five, one in Budapest and one at Marosvásárhely, to replace the dissolved regional appellate courts. The statute declared that "the highest legal authority as regards the whole jurisdiction of the two royal courts of appeal would rest with the highest court under the name 'Royal Hungarian Curia' located in Pest." This meant that the functions of the supreme court consisting of two departments - the Court of Cassation adjudicating appeals in the field of the law of procedure and the Supreme Tribunal dealing with cases of third instance on the merits - were narrowed down to the jurisdiction of the former Table of Seven.

On 1 June 1869 the Court of Cassation held its statutory meeting under the chairmanship of Lord Chief Justice Count MAILÁTH György. The Royal Court of Appeal of Pest which was reinstituted on 1 May 1861 started its activities on 1 June 1869 and in spite of its feudal framework it adjudicated according to bourgeois values. Its ensuing presidents were FÁBRY István, SZABÓ Miklós, MIHAJLOVITS Miklós, dr. VAJKAY Károly, CZORDA Bódog, VÉRTESSY Sándor, OBERSCHALL Adolf and CSATHÓ Ferenc, and it functioned until its partition on 4 May 1891. In 1891 president dr. VAJKAY Károly was appointed president of the newly established Royal Court of Appeal of Budapest as well and later on of leaders of the courts of appeal SZABÓ Miklós (1888-1905) and OBERSCHALL Adolf (1906-1908) became presidents of the Curia. Article 2 of Act LIX of 1881 merged the two departments of the Curia as from 1 January 1882: "With regard to the jurisdiction of both royal tables, the highest judicial authority is hereby vested in the Royal Hungarian Curia in Budapest." With Act XXXVIII of 1884 the offices of the Lord Chief Justice and the President of the Curia were separated. PERCZEL Béla, the former vice-president, became the assassinated Count MAJLÁTH György's successor from 27 November 1884 and he was the first president of the Royal Hungarian Curia who was no longer Lord Chief Justice at the same time.

HAUSZMANN Alajos was ready with the plans of the present day building of the Municipal Court in 1884 but it was built only in 1887. The building provided place for several legal forums. It is known from Hauszmann's biography that FABINY Teofil, Minister of Justice commissioned him to draw up the plans of the Royal Curia as well, the actual construction of which started in 1983. Meeting the requirements, the building was completed by the festival of the millennium. The last stone of it was put to its place by Franz Joseph on 6 October 1936. (Other sources point out the period between 1891 and 1897 as the time of construction.)

Act XXV of 1980 decentralised the royal courts of appeal creating eleven courts in place of two. The revolutions that followed World War I brought about temporary modifications in the system of the courts while the Trianon Peace Treaty resulted in fundamental changes: the number of the royal courts of appeal was reduced to 5, the number of the royal tribunals fell to 67 and that of the primary provincial district courts to 150. Following the above mentioned presidents, the Supreme Court of bourgeois Hungary was headed by GÜNTHER Antal (1909-1920), TŐRY Gusztáv (1920-1925), JUHÁSZ Andor (1925-1934), OSVALD István (1934-1937), TÖREKY Géza (1937-1944) and during the pro-fascist Szálasi era SZEMÁK Jenő (1944-1945). The last president of the Hungarian Curia was KEREKESS István (1945-1949), during its dissolution it was led by vice-president SOMOGYI Ödön. By 1947-1948 domestic conditions, including the administration of justice and the conditions of the administrators of justice, entirely changed. Act XX of 1949, the new Constitution of the People's Republic of Hungary ruled on the new judicial structure, referring to the tribunals as county courts, to the courts of appeal as high courts and to the Hungarian Curia as the Supreme Court of the People's Republic. The new highest judicial organ held its first plenary meeting on 18 November 1949 in the building planned by Hauszmann. However, judges could not stay here long, in 1953 the Judicial Palace was given over first to the Historical Museum of Hungarian and International Workers' Movement, then to the Museum of Ethnography, afterwards to the National Gallery and all the while as co-tenants the Workers' Movement Institute of the Hungarian Workers' Party (and its legal successor) and for a short period a department of the National Archives were also placed in the building.

At the beginning the new Supreme Court was led by two vice-presidents, SOMOGYI Ödön (1949-1950) and JANKÓ Péter (1950-1953). The first president was MOLNÁR Erik (1953-1954), his successors were DOMOKOS József (1954-1958), JAHNER-BAKOS Mihály (1958-1963), SZALAY József (1963-1968) and SZAKÁCS Ödön (1968-1980). SZILBEREKY Jenő (1980-1990) was the last president of the Supreme Court of the Hungarian People's Republic and the first one of that of the Hungarian Republic. Under his presidency, at the beginning of 1981 he managed to move the judiciary from the Buda side of Chain bridge to Markó street, into the building which had earlier housed the Ministry of Heavy Industries. This palace was built based on FELLNER Sándor's plans of 1912. From 1918 it housed the Ministry of Justice, from 1945 the Ministry of Internal Affairs and afterwards it was used by the Ministry of Heavy Industries, the National Supervisory Committee of Technics and the Mining Inspectorate. Since September 1981 the building has housed exclusively the Supreme Court and the Prosecutor-General's Office. After Szilbereky's retirement, NAGY Zoltán was acting head for a short period, filling the presidential vacuum, and following the parliamentary elections in 1990 the new parliament elected SOLT Pál as president of the Supreme Court in 1990 and repeatedly in 1996.

Neither in the 19th, nor in the 20th century could Hungarian supreme jurisdiction function independently of political turbulence. Judges had to render decisions in matters of political nature, they were involved in procedures against party and state leaders of various convictions and the expected final decision of these cases was often suggested. This was the case before and after World War I and the revolutions and likewise before and after World War II. Supreme Court judges could not withdraw themselves from political cases, from the sanction following 1956 or later on from the so-called restitution procedures conducted in several waves. The administration of justice from 1945 which served the creation and protection of the Stalin-type regime is appropriately characterised by the three so-called cassation acts which provide for the annulment of any unlawful decision issued between 1948 and 1989 (regardless whether which court at which instance passed the unlawful decision). In 1934 the then president of the Curia, dr. JUHÁSZ Andor said: "As soon as a judge has to adjust his judgement to political and social trends, to the preference of the executive power or to that of any domineering contentious party instead of his own personal imperative, he ceases to be a judge." A decade later this ars poetica lost its validity for a long time. An example of the apocalypse could be the fate of the last president of the Curia who led the institution temporarily from 9 April 1945 and then became its president on 27 September until his retirement in January 1949. On 13 August 1954 the 76-year old dr. KEREKESS István was arrested by state security officials and was released on 4 November. On 11 December 1954 in its final judgement the Municipal Court sentenced him to two year and three month long imprisonment as the accused of the case Fuddi Otmár and others. He was in prison from 1 September 1955 to 14 April 1956. On 22 April 1996, 33 years after his death the Municipal Court declared its unlawful decision void.

In order to implement the Fundamental Law of Hungary, effective as of 1 January 2012, Act CLXI of 2011 on the organization and administration of the courts, as well as Act CLXII of 2011 on the status and remuneration of judges aim at the elimination of the problems mentioned above, moreover at striking a new path providing an up-to-date and efficient system of courts and judiciary.

The explanation of the act underlines that a new system shall be established as of 1 January 2012, where the administrative and the professional competences are clearly separated: the task of central administration of courts shall be performed by the President of the National Office for the Judiciary, while the President of the Curia shall solely be responsible for professional leadership. An important element of the system is the National Judicial Council (NJC), elected by judges and consisting exclusively of judges, which performs mainly control functions. The competences of the re-established Curia have significantly been widened. Its first President is Dr. Péter Darák, who holds office since 1 January, 2012.

Judicial reform

The Judicial reform in Hungary

As a result of the democratic transformation of the political system in 1989-1990, the functioning of the Hungarian judicial system underwent a reform of historical importance in the course of the subsequent decade. Article 1 of Act XXXI of 1989 on the Amendments of the Constitution declared that "Hungary is a republic", accordingly since 1989 the courts have passed their decisions in the name of the Republic of Hungary. (Act CLXI of 2011 on the Organisation and Administration of the Courts, which came into force on 1 January 2012, does not contain such a provision, and with the repeal of Article 257(2) of the Act on Criminal Procedures and Article 212(2) of the Act on Civil Procedures as of 1 January 2012, no procedural law includes the provision any more.)The modification of the constitution necessitated the amendments of numerous laws and the reforming of the whole judicial system. The acts containing the most important elements of reform were adopted in 1997, in the frame of which Act LXVI of 1997 on the Organisation and Administration of the Courts annulled the previous act on the judiciary.

The elements of reform

The political transition in 1989-90 created the basis of the rule of law in the country and gave rise to a gradually evolving reform in jurisdiction. To understand the significance of the judicial reform one has to be familiar with the previous structure of judicial administration, most importantly with the fact that in conformity with the socialist state model the judiciary and the executive were closely interwoven. Apart from the Supreme Court, whose president was elected by Parliament, the connection between the executive and the judiciary in the case of all other courts was ensured by the Minister of Justice. The control and administration of the county and local courts fell under the competence of the Minister, thereby dividing the theoretically single judicial system in administrative matters. The professional guidance of adjudication was a responsibility of the Supreme Court, however, within the framework of its right to supervise the functioning of the courts, the Minister of Justice continuously examined and guided the professional judicial activity of the courts as well.

To remodel and reorganise this judicial system and to establish the basis of a modern and effective system which is compatible in the European Union as well, the judicial reform package focused on the following issues:

- In order to separate the judiciary from the executive, the administration of the courts was transmitted from the Minister of Justice to the newly established National Council of Justice. The establishment of the National Council of Justice brought about the independence of the judiciary and put an end to the control of the government. The external administration and control that had been exercised by the Minister of Justice in the previous system was transformed into an internal administration.

- The administrative autonomy of the Supreme Court ceased to exist and it was integrated into the judicial organisation.

- The judicial system which until then had consisted of three levels was complemented by a fourth level: that of the appeals courts. With the establishment of the five regional appellate courts several objectives were realised. It reduced the overwhelming workload of the local courts, it extended the possibility of legal remedy and simultaneously, by reducing the number of cases which the Supreme Court was required to hear, it made it possible for the Court to concentrate on its primary task of providing theoretical guidance to lower courts. See Act LXVI of 1997 on the Organisation and Administration of the Courts.

- Compared to previous regulations, Act LXVII of 1997 on the Legal Status and Remuneration of Judges prescribes stricter requirements that have to be met in order to become a judge. The rights and duties of judges are defined exhaustively in this act and it also establishes a new principle on which to base the remuneration of judges. The aim of the law is to improve the composition of the judiciary and to increase the prestige of judicial career.

- Act LXVIII of 1997 regulated the service relation and remuneration of judicial employees since they are an important factor of the efficiency of the courts.

- The new rules of civil and criminal procedures are closely related to the new four-level court system. Cases whose adjudication is particularly difficult because of the facts or laws involved are moved from local to county courts. While observing the principles of fair trial, the new rules enable the courts to conduct proceedings in a quicker and easier way.

An episode of wrangling with the courts of appeal

The Constitution and the acts of 1997 provided the establishment of the regional courts of appeal. Pursuant to Act LXIX of 1997 three courts of appeal should have been set up in Budapest, Pécs and Szeged by 1 January 1999 and by 1 January 2003 the latest two more should have been instituted in Debrecen and Győr. However, following the 1998 national elections and the talks between the Prime Minister and the leaders of jurisdiction at Hédervár on November 3, the Parliament postponed the setting up of the courts of appeal until December 1998. It repealed the relevant act of 1997 and laid stress on strengthening the position of the lower forums of jurisdiction instead. Act CX of 1999 on the Location and Jurisdiction of the National Court of Appeal provided for a single court of appeal in Budapest acting with national competence. However, Decision 49/2001 (XI.22.) AB of the Constitutional Court established that the Parliament created an unconstitutional situation by failing to regulate the establishment of several courts of appeal notwithstanding the explicit authorisation therefor conferred by the Constitution. The Court called upon the Parliament to perform its obligation to regulate according to the Constitution and the amendment was to be passed by the end of 2002. On 9 July 2002 following the national elections, the Parliament passed the government's proposal on the setting up of five courts of appeal.

The appellate courts in Budapest, Pécs, and Szeged have been working actively since 1 July 2003, the ones in Debrecen and Győr since 1 January 2005. At the five courts of appeal there are altogether 153 judges. With the exception of Budapest, the new courts have got suitable buildings or they are under construction. In Budapest the idea arose that the Supreme Court should move to the former building of the Hungarian Curia opposite the Parliament, leaving its present seat to the Budapest Court of Appeal.

The Presidents of the Supreme Court and the Curia

From 1990 on dr. SOLT Pál - who had been a supreme court judge and a constitutional court judge - was President of the Supreme Court for two periods of six years. He was followed by dr. LOMNICI Zoltán between 2002 and 2008. After the expiry of his mandate, the power of president was assigned temporarily to Vice-President dr. KAPOSVÁRI Bertalan. On 22 June 2009 dr. BAKA András was elected President of the Supreme Court and his mandate terminated on 31 December 2011.

The system of administration of justice introduced in 1997 has often been criticized. It has been established that the judge members of the National Council of Justice (hereinafter NCJ) were usually judicial leaders over whom the employer’s rights were exercised by NCJ itself.

Difficulties arose from the fact that the President of the NCJ was President of the Supreme Court at the same time. Both positions require full-time commitment, which made it very difficult to carry out the administrative tasks of the President of the NCJ simultaneously with the professional judicial responsibilities of the President of the Supreme Court. The President of the NCJ directed the Office of the National Council of Justice, besides, he had to fulfil his duties of internal administration (at the Supreme Court), as well as the duties arising from the constitutional obligation of establishing and maintaining the unity of jurisdiction.

NCJ, which was responsible for the central administration of courts, could cope neither with the huge number of delayed cases nor with the uneven distribution of cases among the courts.

Analyzing and assessing the expectations toward justice, as well as the continuous difficulties, the legislator drew the consequence that a new system of administrative and professional direction of justice should be established that would make use of certain elements of various models of administrations but that would also enable immediate measures. The new system should be based on existing institutional grounds, while radically renewing those foundations.

In order to implement the Fundamental Law of Hungary, effective as of 1 January 2012, Act CLXI of 2011 on the organization and administration of the courts, as well as Act CLXII of 2011 on the status and remuneration of judges aim at the elimination of the problems mentioned above, moreover at striking a new path providing an up-to-date and efficient judicial system. The explanation of the act underlines that as of 1 January 2012 the administrative and the professional competences shall clearly be separated within the framework of the new system.

As of 1 January 2012, the central administration of courts is assigned to the President of the National Office for the Judiciary (NOJ). Administrative competences (appointment of higher judicial leaders, assessment of the applications for judiciary posts, budgetary and personnel administration) exercised by the former National Council of Justice (NCJ) and its President – who was President of the Supreme Court at the same time – have been transferred to the President of NOJ. Thus, professional guidance – provided by the President of the Curia - and the administration of courts – managed by the President of the NOJ - have been separated. An important element of the system is the National Judicial Council (NJC): an independent body, comprising exclusively judges, performs supervisory and control functions.